Connect with us

Opinions

‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history

Published

on

(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Opinions

Trump’s ‘American people derangement syndrome’

Voters must stop him before he destroys democracy

Published

on

President Donald Trump (Washington Blade photo by Michael Key)

Trump, in a deranged, evil, post on X, accused Rob Reiner of suffering from “Trump derangement syndrome.” I guess that would apply to everyone who thinks Trump is an evil, dangerous, asshole who is trying to destroy our society as we know it. With that definition, I would surmise the felon himself suffers from “American people derangement syndrome,” because clearly, he thinks we are all evil, dumb, assholes, and a danger to him, and the fascists surrounding him. 

His speech to the nation was called bellicose, by the New York Times. I would call it unhinged and vile. It was a plea to the populace, containing a pack of lies, to continue to believe his lies, and distortions. We all know the felon is full of shit when telling us prices have come down. We go shopping every week to feed ourselves and our families, even if he doesn’t. We have to pay heating and rent bills each month. We know since he became president nearly a year ago, all those costs have gone up. Talk to any honest person at a chamber of commerce in your area, and they will tell you small businesses are suffering. They will tell you the felon’s tariffs are hurting everyone. We know he is screwing the poor and middle class; trying to end SNAP benefits, and refusing to help with healthcare costs. All the while giving tax breaks to corporations, and the rich. People are not dumb Mr. Felon, and your lies are no longer resonating. 

The evil, deranged, felon in the White House lives in a world where he can do favors for his friends in return for getting them to donate hundreds of millions for his follies. He is a grifter who hosts dinners for rich people to make money for his crypto business. He is said to have made more than $3 billon since his election. This while farmers are going broke, and losing their farms, because his tariffs screwed them. He is undermining vaccines and caused a measles epidemic in the United States. This a disease eradicated before he came into office. He ended grants to research cures for HIV/AIDS, Parkinson’s, Alzheimer’s, cancer, and an assortment of childhood diseases. He stopped research grants for mRNA vaccines. When we have the next pandemic, and it will come, that will result in millions of deaths, all on his head. 

He is embarrassing the United States around the world. They watch him give unhinged speeches, raise and lower tariffs irrationally, screw our allies, and now trying to interfere in their elections. He is bombing fishing boats, claiming they are carrying drugs, with no proof at all. Then he releases from prison the man who brought more cocaine into the country than anyone else ever did. All this is what the lying, cheating, grifting, evil, heartless, felon in the White House, is doing to you, the good people of the United States, and the world. He sounds more unhinged every day while trying to blame everything on former President Biden and Democrats, who haven’t controlled the levers of government in nearly a year. 

I know the results of the 2025 elections must scare him. They show him the majority no longer accept his BS. We will go into 2026, and the midterm elections, with our eyes wide open. He wants to be King and we don’t want kings in our country. He has what his chief of staff calls, “an alcoholic’s personality” “because he believes there’s nothing he can’t do.” She is right about that, but we will call him on it in the next election. We will say clearly, with our voices, and our votes, “no more, enough is enough.” We are taking back the country and will throw out anyone in office who still supports him. 

We try and forgive those who voted for him, as long as they now recognize he lied to them, and is screwing them. Young people must understand they will suffer their whole lives because he is a climate denier. Latino and Hispanic voters, who believed he was going to support them, now see he wants to deport them. Farmers who once thought he supported them, until he screwed them. We must now all join together, and show the evil SOB in the White House, who is building his grand ballroom, taking planes, and other gifts, and pardoning the guilty; his time is coming to an end. Again, we will go into the voting booth, eyes wide open, and vote to stop him before he completely destroys our lives, our families, our democracy, and brings fascism to our country. 


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

Continue Reading

Opinions

Using movement to boost your mental health during holidays

Sometimes the goal is simply steadiness

Published

on

Gerard Burley, also known as Coach G, is founder and CEO of Sweat DC.

We’re told this is the season of Ho Ho Ho. Joy. Family. Home.

But let’s be honest. The holidays are stressful for almost everyone. Even in the best situations, this time of year comes with pressure. Expectations. Family dynamics. Financial stress. Comparison. The emotional labor of trying to make everything feel warm and magical while quietly holding a lot inside.

For some people, home is comfort. For others, it’s complicated. A place where old roles come back fast. Where you’re expected to be a version of yourself that no longer fits. Where love exists, but understanding feels incomplete.

And for many of us in the LGBTQ community, that stress can carry extra weight. Sitting at tables where parts of who you are feel debated instead of celebrated. Navigating politics and beliefs that don’t feel abstract, but personal. Deciding when to speak up, when to stay quiet, and when to just go refill your drink. Grief changes how the holidays land.

For me, the holidays have often been quiet. I’m deeply grateful for the family I still have and the support they’ve given me, and I also need to be real. I’ve been jealous. Jealous AF. Jealous that I can’t go home and hug my mother. Jealous that my dad isn’t there. Jealous when I see the cozy movie version of the holidays play out in other people’s lives. Not because they don’t deserve it, but because I wish I had it too.

Long before fitness became my career, the gym was my sanctuary. Without movement, these seasons would have been much harder. My body changed as a byproduct, sure, but what movement gave me first was something more important. Stability. A place to put grief. A way to move stress out of my body when words weren’t enough. Stress doesn’t just live in the mind.

We like to think stress is something we can talk through or think our way out of. But stress and anxiety live in the body. Chronic stress has been shown to disrupt sleep, weaken the immune system, and show up physically as tension, fatigue, and pain. When it’s left unaddressed, it doesn’t just affect how we feel emotionally. It affects how we function.

Most people don’t come into fitness because they’re thriving. After 20 years of coaching, almost everyone I’ve met started with physical goals. Lose weight. Build muscle. Look different. What they don’t always see is how stress, burnout, emotional eating, and putting everyone else first got them there. Most people aren’t failing. They’re exhausted.

When we talk about mental health, we think about therapy, medication, boundaries, vacations, or staying away from that one family member who always finds a way to press your buttons. All of those things matter. They save lives. But movement is rarely treated as part of the mental health plan, even though every single person who moves consistently feels better mentally. Not perfect. Just better. As my business partner Chase likes to say, sexy is the side effect. This isn’t just empathy. It’s a strategy.

The holidays don’t sneak up on us. We know which dinners will be hard. We know which brunches will test our patience. We know which days we’ll feel alone. So instead of raw-dogging our way through it, we can prep for it.

First, plan your movement the same way you plan the hard stuff. If you know a dinner is going to be stressful, don’t show up already hot. Schedule your workout that day, the day before, or in the days leading up so your nervous system is already in a better place. You’re not trying to win the day. You’re trying to lower the starting line.

Second, give yourself time limits. You don’t have to do the full four hours. There’s a lot of space between not showing up at all and staying until you’re emotionally fried. Do an hour. Schedule a fake work meeting if you have to. Show up in a way that lets you stay in character and protect your peace. That still counts.

Third, move how you can move. If you’re traveling, alone, out of routine, or your gym is closed, it doesn’t have to be perfect. Twenty minutes works. A walk works. A jog works. A short breathing or meditation session works. Even a quick bodyweight circuit in your childhood bedroom works. And if you need ideas, we share our monthly programming and workouts on the SWEAT DC Instagram so anyone can follow along and move, wherever they are.

Fitness doesn’t have to look good to be effective. It just has to be intentional. Especially this time of year.

As the year comes to a close, my hope isn’t that this season suddenly feels easy. It’s that you feel supported. That you remember movement isn’t about punishment or perfection. It’s about care.

Sometimes the goal isn’t happiness. Sometimes the goal is steadiness. And honestly, some years, that’s a win. We can do that. And we don’t have to do it alone.


Gerard Burley, also known as Coach G, is founder and CEO of Sweat DC.

Continue Reading

Commentary

Protecting the trans community is not optional for elected allies and candidates

One of oldest political tactics is blaming vulnerable group for societal woes

Published

on

rotester stands outside Children's National Hospital in Northwest D.C. on Feb. 2, 2025. (Washington Blade photo by Linus Berggren)

Being an ally to the trans community is not a conditional position for me, nor should it be for any candidate. My allyship doesn’t hinge on polling, focus groups, or whether courage feels politically convenient. At a time when trans people, especially trans youth of color, are under coordinated attack, elected officials and candidates must do more than offer quiet support. We must take a public and solid stand.

History shows us how these moments begin. One of the oldest political tactics is to single out the most vulnerable and blame them for society’s anxieties — not because they are responsible, but because they are easier to blame than those with power and protection. In Nazi Germany, Jewish people were primarily targeted, but they were not the only demographic who suffered elimination. LGBTQ people, disabled people, Romani communities, political dissidents, and others were also rounded up, imprisoned, and killed. Among the earliest acts of fascistic repression was the destruction of Berlin’s Institute for Sexual Science, a pioneering center for gender-affirming care and LGBTQ research. These books and medical records were among the first to be confiscated and burned. It is not a coincidence that these same communities are now the first to suffer under this regime, they are our canaries in the coal mine signaling what’s to come. 

Congress, emboldened by the rhetoric of the Donald Trump campaign, recently passed HR 3492 to criminalize healthcare workers who provide gender-affirming healthcare with fines and imprisonment. This bill, sponsored by celebrity politicians like Marjorie Taylor Greene, puts politics and headlines over people and health outcomes. Healthcare that a number of cis-gendered people also benefit from byway of hair regeneration and surgery, male and female breast augmentation, hormone replacement therapy etc. Even when these bills targeting this care do not pass, they do real damage. They create fear among patients, legal uncertainty for providers, and instability for clinics that serve the most marginalized people in our communities.

Here in D.C., organizations like Planned Parenthood and Whitman-Walker Health are lifelines for many communities. They provide gender-affirming care alongside primary care, mental health services, HIV treatment, and preventative medicine. When healthcare is politicized or criminalized, people don’t wait for court rulings — they delay care, ration medication, or disappear from the system entirely.

As a pharmacist, I know exactly what that means. These are life-saving medications. Continuity of care matters. Criminalizing and politicizing healthcare does not protect children or families — it puts lives at risk.

Instead of centering these realities, political discourse has been deliberately diverted toward a manufactured panic about trans women in sports. Let me be clear: trans women deserve to be protected and allowed to compete just like anyone else. Athletics have always included people with different bodies, strengths, and abilities. Girls and women will always encounter competitors who are stronger or faster — that is not a gender or sports crisis, it is the nature of competition.

Sports are meant to teach fairness, mutual respect, and the shared spirit of competition — not suspicion or exclusion. We should not police young people’s bodies, and we should reject attempts to single out trans youth as a political distraction. Families and doctors should be the authority on sex and gender identity.

This narrative has been cynically amplified by the right, but too often Democrats have allowed it to take hold rather than forcefully rejecting it. It is imperative to pay attention to what is happening — and to push back against every attempt to dehumanize anyone for political gain.

Trans people have always been part of our communities and our democracy. Protecting the most vulnerable is not radical — it is the foundation of a just society. My work is grounded in that commitment, and I will not waver from it. I’m proud to have hired trans political team Down Ballot to lead my campaign for DC Council At Large. We need more ally leaders of all stages to stand up for the LGBTQ+ community. We must let elected detractors know that when they come for them, then they come for all of us. We cannot allow Fox News and social media trolls to create a narrative that scares us away from protecting marginalized populations. We must stand up and do what’s right.

Anything less is not leadership.

Rep. Oye Owolewa is running for an at-large seat on the D.C. Council.

Continue Reading

Popular